Eba Kandovazu
THE Supreme Court today ruled that the Home Affairs Ministry’s behaviour was appalling after it declined to issue a Certificate of Identity to Mexican national Guilermo Delgado without informing him of reasons, leaving him no choice but to unexpectedly leave the country to South Africa via Botswana.
Delgado, who is married to Philip Luhl, a Namibian male, says he was only informed about the ministry’s decision at the Ngoma border in January 2020, when he was intending to travel to the Victoria Falls in the company of his visiting sister and companions. Although he had applied months prior, the ministry never informed him that a decision was already made to decline his application.
The decision according to the ministry was made in August 2019. The immigration officer at the border informed Delgado that he only had two options; to exit the country or stay in the country as an illegal immigrant. Left with no choice, Delgado proceeded to Botswana as Mexican nationals require no visa to South Africa.
A full bench consisting of Chief Justice Peter Shivute, Judge President Petrus Damaseb and Dave Smuts has today ordered Home Affairs to consider the application afresh.
“In terms of the constitution, the appellant had a right to be informed of the decision adversely affecting him so that he could seek redress if so advised. There can be no doubt that the appellant was treated appallingly and in a most undignified manner. He had to make an unplanned exit out of the country leaving behind his companions and visiting sister. It is an inhumane and degrading treatment that holds no place in society,” Shivute said.
The judges however said that the High Court was correct to have found that the issuance of the certificate to the applicant could not in law confer domicile to him, that the court did not misdirect itself when it declined to issue the declaration that the appellant had acquired domicile in Namibia.
The certificate is issued to any person who is lawfully a resident in Namibia on his or her return.
Delgado was previously granted the certificate and it expired. Adamant that he had acquired domicile in Namibia by virtue of his marriage to a Namibian national, Delgado argued that the initial issuance of the certificate to him was an acknowledgement of this by Home Affairs.
The Home Affairs Ministry however denies that Delgado acquired domicile in Namibia, that his previous certificate was issued under a mistaken belief that he and his spouse were lawfully married in terms of the Namibian law.
“As same sex marriage is not recognised in Namibia, the appellant’s marriage to a Namibian could not form a basis for the acquisition of the certificate. He should have applied for a permanent residence permit for him to acquire domicile,” the Ministry argued.
Although the ministry acknowledges that Delgado wasn’t informed of their decision in writing, they contend that their belated verbal communication of the Immigration officer at the border in January 2020 constituted effective communication.
